Bid Shopping Limited v. pei gao
Claim Number: FA1507001627359
Complainant is Bid Shopping Limited (“Complainant”), represented by Grant Dean Miller of Beauport Enterprises Limited, United Kingdom. Respondent is pei gao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bid.tv>, registered with Name117, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 6, 2015; the Forum received payment on July 6, 2015.
On July 6, 2015, Name117, Inc. confirmed by e-mail to the Forum that the <bid.tv> domain name is registered with Name117, Inc. and that Respondent is the current registrant of the name. Name117, Inc. has verified that Respondent is bound by the Name117, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 7, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bid.tv. Also on July 7, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 3, 2015 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions
1.The domain name is identical or confusingly similar to a trademark in which Complainant has rights. Complainant has used the registered BID.TV mark in connection with its business as the second largest television shopping company in the UK since October 14, 2004. (Trade Mark No. UK00002375777, registered April 1, 2005).
2. Respondent has no rights or legitimate interests in the disputed domain name. Respondent is merely attempting to sell the domain to either Complainant or a third-party who would use the domain to pass itself off as Complainant.
3. Respondent’s bad faith is evident from the Respondent’s efforts to sell the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United Kingdom company engaged in the business of providing television shopping services in the United Kingdom.
2. Complainant is the registered owner of the United Kingdom trademark No. UK00002375777, registered April 1, 2005.
3. Respondent registered the disputed domain name on October 27, 2014.
4. Respondent is attempting to sell the domain to either Complainant or a third-party who would use the domain to pass itself off as Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The first issue that arises is whether Complainant has a trademark or service mark on which it can rely. Complainant contends that it is the registered owner of the BID.TV mark and that it has used the mark as part of its business as a television shopping company in the UK. (United Kingdom Trade Mark No. UK00002375777, registered April 1, 2005). Previous panels have held that registration of a mark with the UK intellectual property office is sufficient to demonstrate a complainant’s rights in a mark. See Royal Bank of Scot. Group plc v. Demand Domains, FA 714952 (Nat. Arb. Forum August 2, 2006) (holding that registration of the PRIVILEGE mark with the United Kingdom trademark authority sufficiently established the complainant’s rights in the mark under the Policy). The Panel therefore determines that Complainant has rights in the BID.TV mark under Policy ¶ 4(a)(i).
The second issue that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BID.TV mark. Respondent’s disputed <bid.tv> domain name appears to be identical to Complainant’s BID.TV mark. Given the lack of differences between the mark and the disputed domain name the Panel finds that Respondent’s disputed <bid.tv> is identical to the BID.TV mark. See Porto Chico Stores, Inc. v. Zambon, D2000-1270 (WIPO Nov. 15, 2000) (stating that the panel should resolve whether a mark is identical or confusingly similar “by comparing the trademark and the disputed domain name, without regard to the circumstances under which either may be used”).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s BID.TV mark and to use it in its domain name which is identical to the mark;
(b) Respondent registered the disputed domain name on October 27, 2014;
(c) Respondent has attempted to sell the domain to either Complainant or a third-party who would use the domain to pass itself off as Complainant;
(d) Respondent engaged in the aforementioned activities without the permission or authority of Complainant;
(e) Although Complainant has not made an argument regarding whether or not Respondent is commonly known by the disputed domain name, the Panel notes that the WHOIS information lists “pei gao” as registrant of the disputed domain name. Previous panels have found WHOIS information to be particularly persuasive when analyzing Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii);
(f) Complainant contends that Respondent’s lack of rights and legitimate interests in the disputed domain name is shown by the Respondent’s attempts to sell the domain name for amounts of money ranging from $6,000 to $10,000. See Compl., at Annex E, D, & F. Panels have found that a respondent’s attempt to sell a domain for more than out of pocket costs demonstrates a respondent’s lack of rights or legitimate interests in the domain name. See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”). The Panel therefore finds that Respondent’s attempts to sell the <bid.tv> domain name demonstrates a lack of rights of legitimate interests.
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and is using the disputed domain name in bad faith. To support this contention Complainant points to evidence showing that Respondent has made efforts to sell the disputed domain name. See Compl., at Annex E, D, & F. Panels have held that a respondent offering a disputed domain name for sale can be evidence of bad faith under Policy ¶ 4(b)(i). See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Respondent is advertising the <bigtow.com> domain name for sale for $5,000. Furthermore, Respondent offered to sell the disputed domain name to Complainant for $4,000. The Panel finds that these offers to sell the disputed domain name constitute bad faith registration and use pursuant to Policy ¶ 4(b)(i).”). The Panel finds that Respondent’s registration and use of the disputed domain name is in bad faith under Policy ¶ 4(b)(i).
Secondly, Complainant contends that Respondent only registered the disputed domain name after Complainant’s registration lapsed as a result of Complainant entering administration. Although there is no evidence provided to verify this claim, as the Panel finds that Respondent took advantage of a lapse in registration the Panel concludes that Respondent has demonstrated bad faith under Policy ¶ 4(a)(iii). See Florists’ Transworld Delivery, Inc. v. Domain Strategy, Inc., FA 113974 (Nat. Arb. Forum June 27, 2002) (“Complainant previously held the contested domain name before an inadvertent error allowed the registration to lapse. Respondent apparently took advantage of the presented opportunity and immediately registered the lapsed domain name. Respondent’s opportunistic actions exhibit bad faith under Policy ¶ 4(a)(iii).”).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed <bid.tv> domain name using the BID.TV mark and in view of the conduct that Respondent engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bid.tv> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: August 4, 2015
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